Arizona Attorney - February 2015

people in Clifton.

Swayne repeated his promise that the Sisters would stay two to three weeks to make sure the homes were fit and, if not, they would remove the children. The crowd again rejected these assurances and threatened both Swayne and the priest.

The next day, Swayne visited Mexican homes and took other children, who were returned to New York, save three who were given to the deputy sheriff. Swayne said he feared that if he didn’t give Donagan those three children, the town mob would keep them all.

On the sixteenth of October, those families who received the children applied for guardianship. Judge Little granted it two weeks later in the Graham County Probate Court. The Foundling Hospital challenged the guardianships and filed a habeas corpus on the basis that the children were deprived of their freedom and were being held against the will of the Hospital who had the legal right to them. The Supreme Court of the Arizona Territory tried the case, which was then appealed to the U.S. Supreme Court.

The Case

Eugene S. Ives and Bennett & Williams represented the plaintiffs in New York Foundling Hospital v. John C. Gatti. Ives, the attorney for the Foundling Hospital, was a wealthy and prominent Anglo Catholic and at the time president of the upper house of the Territorial Assembly. A New York lawyer, he had come to Tucson when he was 37. He was the most prominent Catholic lawyer and a Democrat. He complained afterward that people shunned him for representing the hospital.

William Henry Brophy, Manager of the Phelps Dodge (PD) company store in Bisbee and a banker, organized the Bisbee Knights of Columbus to investigate the incident. Their report found that anti-Catholicism was a major factor in the conflict, that some of the Anglo parents were not good Catholics, and that some were saloonkeepers. Brophy recommended Ives to the Sisters, spent money on the local litigation and organized support.

In the trial transcript, no one represented
the Mexicans, and no Mexicans appeared as
witnesses. Only Margarita Chacón (an Anglo
who had married a Mexican) was subpoe-
naed, but she refused to come.

The Sisters’ strategy at trial was to say they had made a mistake giving the children to the Mexicans and would take them back to New York. Thus Ives had stipulated in the initial pleadings that the families were unsuitable, the homes degraded, ragged, poor and destitute. He decided to concede the bad character of the Mexicans to avoid negative testimony about them—to no avail. Once that testimony began, he objected once that it was cumulative, but his objection was overruled.

The defense strategy was to raise racism at every opportunity to show why the Americans were so outraged and were forced to engage in self-defense, evoke parens patriae, and carry out citizens’ arrests in defense of the children. The defense put forth procedural arguments that the hospital had no right to sue in Arizona, and defensive arguments that they had guardianship and the children were abandoned and voluntarily relinquished. But their main argument was that the best interest of the children was to be with the white Americans.

The Trial

During the trial at the Territorial Supreme Court of Arizona in January 1905, the plaintiff focused on the threat to the nuns and their agent and their fear for their lives. Even the deputy sheriff admitted to it as he advised the agent to get out of town by 7:00 p.m. or the deputy could not protect him. The priest left with the agent.

The defense called 19 witnesses, 11 of
whom berated the Mexican families. The
women all testified nearly identically: When
the children were picked up they were
scantily clad; their hair was matted; their
faces and clothes dirty; they were ill and
vomiting chili, beans, tortillas, watermelon
and other improper food; and they smelled
of whiskey and beer. According to the
Anglos, the Mexicans or Indians, whichever
they were, all were illiterate, drank, gambled
and earned a pittance, if anything.

After the women, the defense called a parade of high-ranking citizens from a member of the legislative council, to a hotel owner, to the superintendent of the mines to assure the court that the children had been placed with suitable people. Though these witnesses admitted they had no personal knowledge of the Mexican families, they freely testified to their poor class. In reality, some of the Mexicans were businessmen and -women, teachers and skilled crafts-men; some owned their own homes, one a 17-room palace.

The Territorial Ruling

Chief Justice Kent wrote the opinion in New York Foundling Hospital v. John C. Gatti, 3 most of which was simply copied from a case in Massachusetts. That case said that the laws of a foreign state that are repugnant cannot have any import in this state. Using parens patriae rationale, the court said no one has an absolute right to the child, so it’s up to the court according to best interests, not legal niceties. The court adopted wholesale the language of the defendant: “children of the Caucasian race placed in homes of poor, illiterate, and vicious half-breed Mexican Indians…” (p. 105) were “taken by American residents, the respondents, fit persons, by reason of their character, standing and age, to have them in their custody and control, who cared for them in suitable homes” (p. 103) and determined that their best interest was served by leaving the children where they were.